Weilers LLP

Proof Is Far From Standard

Proof Is Far From Standard

May 2, 2024

By Brian Babcock 

You probably know the phrase “beyond a reasonable doubt”. This criminal standard of proof receives frequent attention in the media.

But there is a difference between the criminal standard of proof, which is very strict, and the civil standard of “balance of probabilities”, which is less tough to meet. [1]

This distinction makes sense. We would not want people jailed just because they “probably” are guilty. But in civil claims between parties, one side or the other needs to win. They do so by proving their version of events, considered in the matrix of applicable law, makes their version more likely than the other side’s version.

At one time, there was some confusion over the civil standard, and whether a tougher standard  might apply to allegations of criminal type acts, such as fraud or sexual assault,  in civil cases, but in 2008, the Supreme Court of Canada made it clear that “there is only one civil standard of proof at common law and that is proof on a balance of probabilities.” This simply means that “ In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.”

The reference to “an alleged event” is also important to understanding the standard of proof. Proof in criminal cases tends to deal with all elements of the event together, although in judge alone cases, their reasons will break it down. In civil cases, each element of the case needs to be proven as a stepping stone of the logic of the case- miss one stone as you cross the stream and  you end up in the water.

How does civil litigation ensure that there is a winner and a loser? The “burden of proof”  which is different from the standard of proof, is usually assigned to the Plaintiff- the party asking the court to give them something must have the stronger case, or they lose. The burden may shift where a defendant tells an alternative story.

Proof, especially in civil cases really is about story telling – the most plausible story -usually wins. Intelligence, organization, memory, diligent work, are important for any litigation lawyer, but one of the key differentiating features between good civil litigation lawyers and the top lawyers is that story telling ability.

At Weilers LLP, we look for lawyers who are good story tellers, and then look to hone that ability in our internal training and mentoring.

If you need a lawyer who is a good storyteller- and anybody in litigation should- give us a call. We might be the right lawyers for you.


[1] Provincial offences, though not criminal law, are subject to the reasonable doubt standard. Though at Weilers LLP we do not practice criminal law, we do represent clients on provincial offences, and know that standard of proof also.